A prior out-of-state conviction may render an inmate ineligible for resentencing under Proposition 36. In 2008, Carothers was convicted of unlawfully taking or driving a vehicle (Pen. Code, § 10851, subd. (a)) and admitted two prior strike convictions, a 1975 robbery in California and a 1978 murder in Texas. He was sentenced to 25 years to life under the Three Strikes law. In November 2014, after the passage of Proposition 36, Carothers filed a petition to recall his sentence, arguing that the statute did not contemplate out-of-state convictions as disqualifying offenses, and even if it did, the record of his Texas murder conviction did not necessarily show he committed murder as defined under California law. The trial court concluded that Carothers’ Texas murder conviction was a disqualifying offense and denied his petition. Carothers appealed. Held: Reversed. Under Proposition 36, an inmate is not eligible for resentencing if he or she has a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv) (also called “super strike” offenses). One of the listed offenses is “[a]ny homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.” (Pen. Code, §§ 667, subd. (e)(2)(C)(iv)(IV), 1170.12, subdivision (c)(2)(C)(iv)(IV).) Sections 667, subdivision (e)(2)(C)(iv), and 1170.12, subdivision (c)(2)(C)(iv) both refer to that section’s definition of “prior serious and/or violent conviction for a felony.” The definition includes prior convictions in other jurisdictions that meet certain criteria. After analyzing the statutes, the Court of Appeal concluded that “[a]n inmate is not eligible for resentencing under section 1170.126 if he or she has a prior out-of-state conviction for an offense that, if committed in California, includes all of the elements of any of the super strike offenses appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv).”

The trial court erred in concluding that defendant’s 1978 Texas murder conviction disqualified him from being resentenced under Proposition 36. The Court of Appeal also considered whether Carothers’ 1978 Texas murder conviction, if committed in California, included all the elements of a super strike offense. The only facts in the record about the offense were that Carothers killed the victim by stabbing him with a knife and hitting him on the head with a blunt object. He was convicted of violating Texas Penal Code section 19.02, which provides that a defendant commits murder if he or she “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” The court here concluded that this offense is most analogous, but not identical, to implied malice murder in California (Pen. Code, §§ 187, 188), which requires that the defendant have a subjective awareness of the risk of death. In Texas, a finding that a defendant intended to cause serious bodily injury does not necessarily include a finding that the defendant was subjectively aware of the risk of death. While the Texas jury found Carothers’ actions were objectively and clearly dangerous to human life, depending on the circumstances, it is possible Carothers did not subjectively register the danger. Based on the sparse record in the case, the court concluded that the record of the Texas murder conviction did not establish each element of a California murder. The court disagreed with the Attorney General’s argument that an intent to inflict great bodily injury, regardless of whether or not the defendant was subjectively aware of the risk of death, will suffice to establish malice aforethought. The matter was remanded to the trial court for a determination as to whether resentencing Carothers would pose an unreasonable risk of danger to public safety.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078874.PDF